Dean Andrews Evidence Fall2010

8/8/2019 Dean Andrews Evidence Fall2010

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Dean Camile Andrews Evidence Fall 2010

For Use with Evidence Logic Maps Text

Table of Contents

1. Discussion Order2. Relevancy3. Judicial Notice of Adjudicative Facts4. Character Overview5. Character of Accused6. Character of Victim7. Opinion and Reputation of Witness8. Specific Instances of Conduct9. Other Crimes, Wrongs or Acts10.Methods of Proving Character11.Impeachment by Evidence of Conviction12.Convictions (Time Limits/Pardons)13.Relevancy Outer Limits14.Habit; Routine Practice15.Subsequent Remedial Measures16.

Compromise and Offers to Compromise17.Payment of Medical and Similar Expenses

18.Pleas, Plea Discussions and Related Statements19.Pleas, Plea Discussions and Related Statements Exceptions20.Liability Insurance21.Opinion Testimony22.Qualification of Expert23.Expert Testimony24.Hearsay Overview25.Prior Witness Statements26.Hearsay Exceptions Strong27.Hearsay Exceptions Weak28.Confrontation Clause (Crawford)29.Best Evidence30.Witness Competency31.Personal Knowledge32.Oath and Affirmation33.Writing Used To Refresh Memory34.Prior Statements of Witnesses35.Exclusion of Relevant Evidence36.Privileges Overview37.Attorney/Client Privilege38.Clergy Privilege39.Psychotherapist/Patient Privilege and Medical Treatment40.Spousal Privilege Confidential Communication41.Spousal Privilege Testimonial42.Authentication43.Self-Authentication


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I. Relevancea. Definition of Relevance FRE 401 (Logically Relevant)

i. Relevant evidence means evidence having any tendency to make the existence of any fact that is ofconsequence to the determination of the action more probable or less probable than it would be withoutthe evidence

ii. Notes1. Two Requirements for relevance:

a. The evidence must be probative of the proposition it is offered to prove, andi. Remember youre not looking at the sufficiency of the evidence

b. The proposition to be proved must be one that is of consequences to the determination of theaction

i. Whether it is of consequence to the determination of the action is governed by the substantivelaw

2. Fact need not be disputed background evidence is relevant3. Flight, escape and other admissions by conduct might be relevant

a. The probative value of flight as circumstantial evidence of guilt depends upon the degree ofconfidence with which four inferences can be drawn

i. From the Ds behavior to flightii. From flight to consciousness of guilt concerning the crime chargediii. From consciousness of guilt to consciousness of guilt concerning the crime chargediv. From consciousness of guilt concerning the crime charged to actual guilt of the crime

b. Other conduct that may have relevance similar to that of flight or escape:i. Threats to witnessesii. Attempts to bribe witnessesiii. Refusal to provide handwriting examplesiv. Bad faith destruction of documentary evidencev.

Use of false name

vi. Flight from the country in disguise using false namec. Occurrence or absence of similar accidents

i. In a negligence or product liability case, the occurrence of other accidents may be relevant toshow the existence of a dangerous defect, or notice to D of danger. Have to show that otheraccidents occurred under substantially similar circumstances and conditions

ii. Lack of Accidents


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1. the lack of other accidents may be relevant to show the absence of dangerous condition ordefect, lack of causal relation, and lack of notice also needs to be shown to besubstantially similar

iii. Experiments and Demonstrations1. also have to show substantial similarity of conditions

d. Similar contracts or transactionsi. A partys business transactions with 3rd parties in similar circumstances may be relevant to

prove the probable terms or meaning of terms of a disputed agreement

1. thus, an industry custom is relevant to disputed agreement2. eg, the disputed stamp sale contract

e. Similar claims by Plaintiffi. Fraudulent evidence of fraudulent claims may be relevantii. Claim minded evidence showing P is claim minded is generally excluded

f. Exhibiting personal injuries; bodily demonstrationsi. Exhibition of a personal injury, and demonstrating its effects, is permissible subject to 403

g. View of property or scene by trieri. In trial courts discretion

4. Direct Evidence v. Circumstantial Evidencea. Direct - evidence where the sole inference which must be made to establish a fact of consequence

is the truth of the matter asserted.

i. Ex: I saw X shoot Bb. Circumstantial Evidence evidence offered to establish a fact of consequence where an inference

in addition to the truth of the matter asserted need be made.

i. Thus testimony of X fleeing the scene would be both direct evidence of flight andcircumstantial evidence of the murderous act

b. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible FRE 402i. All relevant evidence is admissible, exceptas otherwise provided by the Constitution, act of Congress,

these rules, or rules of SCt.

ii. Evidence which is not relevant is not admissible


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Judicial Notice

no formal proof

Universally known facts

Civil: Jury must accept

Criminal: Jury may accept

Presumptions:

Only shifts burden of producing evidence to party opposing presumed fact


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a. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (FRE 404, 405)i. General Rule evidence of a persons character is not permitted in order to show that person acted in

conformity with that character on a given occasion


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i. Steps To Dealing W/ Character of Accused:

1. Is evidence character (ie, is 404(a) implicated)?a. Prohibited character evidence is all about propensity because D did some bad stuff before, jury

should think he likely did this bad stuff (FORBIDDEN)b. Where evidence in question does not speak to Ds (or Vs; see below) propensity for acting in

keeping with his character, the evidence in question is fine as far as 404 is concernedc. REMEMBER: MIMIC (404(b)) bumps you out of character (404(a)) restraints altogether

i. Compare:1. forbidden propensity chain

a. D made drugs in past D is a bad person D intended to make drugs2. acceptable non-propensity chain (knowledge)

a. D made drugs in past D knows how to make drugs D intended to make drugsd. REMEMBER: Where character evidence speaks to ultimate issue of case, you get bumped out of

character (404(a)) constraints altogether1. Example (Criminal)

a. Entrapment I would never have sold drugs if not for the entrapment by police. Lookat Ds character to see if this is true.

e. REMEMBER: Where evidence speaks to impeachment of a witness, impeachment rules trumpcharacter and get you out of character (404(a)) constraints

f. Can Prove any of above with reputation, opinion, and specific acts (FRE 405)2. YESIs it civil or criminal?

a. Civil STOPi. character not admissible w/o exception only allowed if MIMIC, ultimate issue, or

impeachmentb. Criminal Next Step

3. Who is introducing evidence?a. Admissible ifD opens door (puts character at issue)

i. Defendantcan offer evidence of a relevant good character1. Relevance Example

a. Murder case: Ds witness can testify that accused was a peaceful man, not that theaccused was a good neighbor or honest neighbor (irrelevant)

4. Is character trait pertinent?a. Typically, honesty and propensity for violence are important on examsb. see above example in murder case, testimony that D is a good neighbor is not pertinent

5. Is character evidence in proper form (405)?a. Direct Examination

i. Can only use reputation and opinion, NOT specific instancesii. Applicable to:

1. Ds direct (and re-direct) of his own character witnesses AND2. Ps direct (and re-direct) of rebuttal witnesses

b. Cross Examinationi. Can use opinion, reputation, AND/OR specific instancesii. Applicable to:

1.

Ds cross examination (and re-cross) of Ps rebuttal witnesses2. Ps cross examination (and re-cross) of Ds character witnessesa. Test Ws opinion or knowledge of Ds reputation using specific acts (using specific acts

to impeach) i.e. have you heard about? (prosecution must have a good faith beliefthat D committed those acts)

b. CAUTION: have to impeach Ds witnesss knowledge of the exact character trait thatthey were testifying to on directi. Eg. If W testified as to truthfulness you can ask about being arrested for receiving

stolen property, but cannot ask about assault and battery chargec. CAUTION: Stuck with answer

If you ask him if he knew about X and he says no, youre stuck with the answer, cant bring in other extrinsicevidence of collateral issue (x)


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i. Steps to Dealing w/ Character of Victim (Non-Sex Cases)1. Is evidence character?

a. Same ways to get out of character apply herei. MIMIC, character is ultimate issue, impeachment

2. YesIs case criminal?a. As above, no character in civil

3. YesIs character evidence of V pertinent?a. If Ds claim is self-defense, Vs character for being a loud neighbor is not pertinent

4. Yes Did D open the door?a. If D opens door and calls W to testify as to Vs character the prosecution can do the following in

response:i. cross examine Ds witness of Vs character using reputation, opinion, and specific acts (but no

extrinsic)1. this cross is limited to same character trait brought out on direct

ii. bring in W to testify to Vs good character on trait at issue using reputation and opinioniii. bring in W to testify to Ds bad character re: the same trait explored by D with respect to V

using reputation and opinion.iv. In homicide case, P can also offer evidence of Vs peacefulness in response to any evidence tha

V was alleged aggressor5. Is form proper? (Same Form Rules as Above)

a. Direct (and re-direct) reputation and opinionII. Cross (and re-cross) reputation, opinion, and specific instances


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Evidence ofCharacter and Conductof Witnesses (FRE 608)

a. Opinion and reputation evidence of character. The credibility of a witness may be attacked or supportedby evidence in the form ofopinion or reputation, but subject to these limitations:i. The evidence may refer only to character oftruthfulness or untruthfulness, andii. Evidence of truthfulness character is admissible only after the character of the witness for truthfulness ha

been attacked by opinion or reputation evidence or otherwise1. ie, no bolstering

b. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of theaccuseds or the witness privilege against self-incrimination when examined with respect to matters thatrelate only to character or truthfulness

c. Breakdowni. Opinion and reputation re: truthfulness of W is ok

1. how done call a reputation or opinion W to testify about fact Ws reputation or about his opinion offact W for trait of truthfulness

d. Notesi. Untruthful Character Reputation Witness (must have personal knowledge of fact W)

1. call reputation witness to testify about fact witnesss poor character for truthfulness2. T must concern the pertinent character trait untruthfulness and may not advert to other

characteristics of the fact W. T must be limited to the fact Ws reputation; the character W cannot give

examples or explain why the reputation exists.ii. Untruthful character Opinion W (must have personal knowledge of fact W)

1. call opinion witness to testify that in her opinion, fact witness is untruthful2. T must be limited to pertinent character trait untruthfulness

e. CIVIL1. Examples (Civil)

a. Slander/ Libel/ Defamation case: truth is defensei. eg, suppose P sues D for slander following chain of character inference is

permissible b/c truth is defense to slander suit:ii. P robbed a bank P is a thief (no slander if D called P a thief)

b. Child custody action: character of parentsc. Will contest: mental condition of testatord. Deceite. Negligententrustment(if it doesnt say entrustment dont assume that it is)f. Assault/Battery: where D claims he acted in self-defense in which case Ps reputation

for violence is in issue


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f. Specific Instances of Conduct. Specific instances of conduct of a witness for the purpose of attacking orsupporting the witnesses character for truthfulness, other than conviction of crime as provided in rule 609may not be proved by extrinsic evidence. They may however, in the discretion of the court, if probative oftruthfulness or untruthfulness, be inquired into ofcross examination of the witness:i. concerning the Ws character for truthfulness or untruthfulnessii. concerning the character for truthfulness or untruthfulness of another W as to which the character the W

being cross-examined has testified

iii. Specific Instances re: truthfulness of W on cross examination1. Bound by the W answer. Extrinsic evidence to prove the specific act is inadmissible2. how done use to get call into question fact Ws own character for truthfulness by bringing up specific

acts w/ fact W OR use to call into question rep/op Ws knowledge of fact Ws character for truthfulnes3. Cross examining / impeaching side must have good faith basis for claiming existence of specific bad

acts4. specific bad acts must go to truthfulness of W

iv. Untruthful character Specific Instances1. show that fact witness has committed specific acts of untruthfulness2. Rule 608(b) governs only the use of specific acts that did not result in convictions, convictions

are governed by Rule 609

3. Limitations:a. although counsel may ask W about the specific act, he may not ask whether W was arrested or

charged for the actb. counsel must have a good faith basis for making the inquiry

4. No Extrinsic Evidencea. Counsel is bound by the Ws answer. Extrinsic evidence to prove the specific act is inadmissibleb. Exception other purposes:

i. FRE 608 applies only when evidence is being offered to prove a Ws character for truthfulnessin impeachment context.

ii. It does not apply when evidence of specific acts is offered for some other purpose Thusextrinsic evidence maybe admissible:1. When evidence is relevant to a material issue in the case2. To prove the Ws bias toward one of the litigants3. To rebut factual assertions made by the W on direct examination4. To cure a Ws misleading statements as to the extent of his troubles with the law

5. Examples (has to go to truthfulness or untruthfulness)a. Sufficient:

i. prior use of a false name, filing false tax returns, failure to file tax returns, forgery, attempts tothreaten potiention Ws to keep them from testify truthfully.

b. Insufficienti. Attempted murder, Threats against judicial offiers in prior presectuion, Drug Use, Speeding,

Filing for Bankruptcy.6. Rehabilitation

a. may be accomplished by presenting evidence of the Ws good character for truthfulness (if puttingon rehabilitation W during direct, must use opinion and reputation)

7.

A character W who has testified to a D-Ws truthful character may not be asked on cross whether hisopinion would change if the D were guilty of the pending charge


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Other Crimes, Wrong and Actsv. MIMIC Rule (404(b)) Both Criminal and Civil

1. General Rule crimes and other wrong acts are not admissible to show conformity (i.e. cant admitthen in order for jury to jail him b/c hes bad)

2. Exceptions; Can be admitted (byanyone) to evidence to show other purposes (will probably need alimiting instruction so jury doesnt use evidence improperly)a. (M)otive, (I)ntent, (M)istake, absence of, (I)dentity, (C)ommon plan or Schemeb. Also Opportunity, Preparation, and Knowledge (see more in Other Purposes section)

3. Criminal or Convictiona. crimes wrongs, and acts does not have to be criminal, must less result in an arrest or convictionb. No requirement that the act occurs prior to the one for which the accused is being tried

4. Tried and Acquitteda. The fact that the D was tried for and acquitted of the other crime does not bar its use under 404(b

5. 403 MIMIC exception triggers 403 analysis6. Exemptions Annotated

a. Intenti. Ex: charge is theft by deception, to prove D did not intend to pay for goods, P offers witness to

testify about other instances where D did not pay for goodsii. Usually goes to Ds state of mindiii. Where you want to bring in evidence of one crime in order to show intent to commit charged

crime, there must be a similarity b/t the to crimes

b. Identityi. Modus Operandi Theory

1. Other crimes or its perpetrator must share distinctive characteristics that evince asignature qualitya. There must be a substantial similarity b/t previous and charged crime

2. A showing that they share features that are generic to the type of crime committed isinsufficient

3. Admissiblea. Both robbers had an orange ski mask, carried a distinctive duffel bag, vaulted over

teller, blue Chevy getaway carc. Knowledge

i. Ex: evidence of Ds prior employment at another fraudulent telemarketing companyadmissible to prove D knew current telemarketing company was engaged in fraudulentpractices

7. Other Purposesa. Where the charged offense and the other crimes are inextricably intertwined (intrinsic offenses)

i. Stabbing of second victim immediately after the firstii. Two instances

1. where the other offense constitutes a part of the transaction that serves as the basis for thcriminal charge; and

2. when a coherent and comprehensible story cant be told w/o mentioning the other crimeb. Consciousness of Guilt

i. threat against witness; stalking; flightc.

To support or rebut a claim of entrapment8. 403 analysis still needed even if using evidence for MIMIC

a. Consider following factors:i. Strength of evidence of other crimeii. Need for the evidenceiii. Proximity in time to the other crimeiv. Degree of similarity b/t this and other crimev. Efficacy of a limiting instruction


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Methods of Proving Characteri. Methods of Proving Character (FRE 405)

1. (a) Reputation or opiniona. In all cases in which evidence of character or a trait of a person is admissible, proof may be made

by testimony as to the reputation or by testimony in the form of an opinion.b. Cross Examination On cross-examination, inquiry is allowable into specific instances of

conducti. Two requirements

1. good faith basis that specific instance is real2. relevancy of specific instance to particular trait discussed on direct

2. (b) Specific Instances of conducta. Character is an issue in case (remember, in these situations, youre bumped out of 404(a)

restraint)i. In cases where character or a trait of character of a person is an essential element of a charge,

claim or defense, proof may also be made of specific instances of the persons conduct1. Also in 405(b) when in issue can also use reputation and opinion

a. Examplei. Defamation case: D calls Plaintiff a thief and a criminal in a political campaign case

P denies the statement. D can then call a W to testify that P was convicted ofrobbery 15 years ago (specific act). Here it is in issue

3. Notesa. Reputation

i. A reputation witness must be qualified by showing that the W has a sufficient acquaintancewith the person, the community in which he has lived or worked, and the circles in which hehas moved to speak with authority of the terms in which he is generally regarded1. reputation W must have personal knowledge of the person about whose reputation she is

testifyingb. Opinion; experts

i. As with reputation, a witness must have sufficient familiarity to be qualified to express anopinion as to a persons character1. speaks to personal knowledge of opinion W

ii. Rule 405(a) embraces expert as well as lay opinion as to a persons traitsc. NOTE on cross, you cannot ask character witness if his opinion change if D was convicted of

charge against him


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Impeachment by Evidence of Conviction

I. Impeachment by Evidence ofConviction of Crime (FRE 609)a. General Rule For the purpose of attacking the credibility of a witness:

i. Witness Other than Accused (prior crime does not involve dishonesty or false statements)1. Evidence that a witness other than an accusedhas been convicted (have to be convicted) of a crime

shall be admitted subject to Rule 403, if:a. Two Requirements:

i. The crime was punishable by death or imprisonmentin excess ofone year, and1. has to be more than 365 days, 365 and less is not enough2. Dont have to serve over 1 year if the crime is punishable w/ over 1 year. Punishment

actually imposed is irrelevant.ii. 403 Balance Test (admit unless unfair prejudice, misleading jury, or confusing issue

substantially outweighs probative value)1. burden falls on the party opposing impeachment2. creates presumption of inclusion

ii. Accused is Witness1. Evidence thatan accusedhas been convicted of such a crime shall be admitted if the court

determinates:a. that the probative value of admitting this evidence outweighs its prejudicial effect to the accused

i. 403 burden falls on impeaching partyii. This 403 balance is higher than normal context (presumption of exclusion)

b. NOTE if D doesnt take stand, you cant get into his rap sheet (can still talk about prior bad acts iffor other purpose under 404(b))

iii. Any Witness (prior crime involves Dishonesty or false statements)1. Evidence thatany witness has been convicted of a crime shall be admitted if it involved dishonesty

or false statement, regardless of punishment2. N.B. there is no 403 balancing test

a. Dishonesty and False Statement examples:i. Yes:

1. Perjury, fraud, embezzlement, false pretense2. Counterfeiting3. Tampering with an electric meter4. Knowingly passing a worthless check (some disagreement)5. Failure to file income tax return (some disagreement)6. Receiving stolen property

ii. No1. Crimes of violence2. Shoplifting3. Unauthorized acquisition and possession of food stamps4. Bank robbery5. Burglary6. Drug use

b. Juvenile Convictionsi. Generally not admissibleii. Exception:

1. Criminal case can use evidence of a juvenile adjudication ofa witness other than the accusedifconviction of the offense would be admissible to attack the credibilityof an adult and the court issatisfied that the admission in evidence is necessary for a fair determination of the issue of guilt orinnocence

c. Pendency on Appeali. If its on appeal you can still get it in

d. 609 not implicated if prior conviction offered for Other Purposes


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i. 609 only applies when prior conviction is being used to prove Ws untruthful character in impeachmentcontext

ii. Thus, evidence of prior conviction not governed by 609 when offered to prove1. A material issue in the case (ie, intent, motive)2. To rebut a factual assertion made by the witness

e. 403 Balancing Factors for analysis under (i) and (ii) abovei. the impeachment value of the prior crimeii. the point in time of the conviction and the Ws subsequent historyiii. the similarity between the past crime and the charged crime

1. more similar the crime is to the charged crime, the less likely to get it iniv. the importance of the Ds testimonyv. the centrality of the credibility issue

f. method of proofi. no specifics given by ruleii. either elicit from witness on stand or establish via public record

Admissibility of past convictions of W

------------------------Balancing Required ----------------------------

Type ofconviction and

witness

Substantiallymore probative

than prejudicial

More probativethan prejudicial

More prejudicialthan probative

Substantiallymore prejudicial

than probative(403)

Crime involvedtruth-telling anywitness

Y Y Y Y

Crime did notinvolve truth-telling; any Wexcept criminal D

Y, if crimecarried death or1+ yr sentence



N

Crime did notinvolve truth-telling; W=D



N N

Any crime morethan 10 y/o


N N N


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Impeachment by Evidence of Conviction Time Limit , Effect of Pardon, Annulment, etc.

a. Time Limiti. Evidence of a conviction is not admissible if aperiod of more than 10 years has elapsed since the date of

the conviction or of the release of the witness from the confinement imposed for that convictionwhichever is the later date (time spent on probation or parole is not considered confinement)

ii. Exception1. Unless probative value substantially outweighs prejudicial effect

a. Will almost never happen presumption of exclusioniii. Notice1. To admit evidence of a conviction more than 10 years old, proponent has to give adverse party

sufficient noticeb. Effect of Pardon, Annulment, or Certificate of Rehabilitation

i. Evidence of conviction not admissible if1. First Exemption

a. Conviction has been subject of a pardon, annulment, certificate of rehabilitation, or otherequivalent procedure based on a finding of rehabilitation of the person; and

b. The person has not been convicted of a subsequent crime which was punishable by death orimprisonment in excess of one year

2. Second Exemptiona. conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a

finding of innocence


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Outer Limits of Relevancy Rule 403

a. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time FRE 403 (LegallyRelevant)i. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delaywaste of time, or needless presentation of cumulative evidence1. Unfair prejudice if evidence has an undue tendency to suggest decision on an improper basis

a. i.e. bias, arouses horror or instinct to punish, sympathyi. ex: pictures of slashing in OJ trialb. not all prejudice is unfair in fact every piece of evidence presents some prejudice to other side(this is why its offered)

2. Surprise not listed in 403 but usually cited, if it can delay trial3. Misleading Jury

a. Evidence jury might attach undue weight to4. Ex: government reports and findings, polygraphs, judicial findings in other proceedings, evidence that

has been alteredConfusion of Issuesa. Evidence may be excluded as confusing the issues if it would tend to distract the jury from the

proper issuesii. Note Rule favors admission relevant evidence gets in unless probative value is SUNSTANTIALLY

outweighed (not merely outweighed)


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Habit

a. Habit; Routine Practice (FRE 406)i. Admissible

1. evidence of the habit of a person or the routine practice of an organization, whether corroborated ornot and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the personor organization on a particular occasion was in conformity with the habit or routine practicea. N.B. Character evidence is not admissible to prove conformity,Habit is admissible to prove

conformity therewith.

ii. Requirements1. Frequency and Regularitya. Conduct must be shown to occur withfrequencyand regularity

i. Must be a regular response to a repeated specific situation; pattern of repeated behavior;regular practice of meeting a particular kind of situation with a specific type of conduct; semi-automatic behavior

ii. Must be shown by proponent of habit evidenceiii. Proof:

1. # of times persons engaged in the conduct v. # of occasions person could have engaged ithe conducta. Ex:

i. Evidence that truck driver had been cited for 9 driving violations in 35 year drivinhistory does notequal a habit

ii. Evidence regarding the manner in which the D loaded its trucks in over 3400instances was held sufficientto establish that routine practice of the D

iv. Need to look for the words always or automatically to find a habitv. Typically, frequently, usually, occasional, almost always not a habit

2. Particularizeda. Is it the typeof conduct that could constitute a habit?

i. How particularizedis the conduct?1. Is the conduct the type that a person does itwithout thinking about it(repetitive conduct

that does not require conscious thought)2. courts typically require that conduct be nonvolitional and occur w/ invariable regularity

3. Sufficient Evidencea. Has sufficient evidence been produced to show that the particular person possessed the habitb. Proof of habit Opinion, specific instances

iii. Examples1. Held Habit

a. Smoking, chewing gum, turning radio on can constitute a habitb. Drs. regular practice of informing patients of risksc. deceaseds habit of wearing a seat beltd. mechanics habit of drinking on the jobe. Ds habit of showing violence to all contacts with police

2. Held Not Habita. Things not habit honesty, peacefulness, carefulness things like, I never lied on my income tax

you cant get in to that stuff. Same thing is true with violenceb. That a state investment officer had never before conditioned an award of state business upon the

making of a political contribution did not constitute a habit of refraining from extortionc. In a malpractice suit, evidence that the D doctor prescribed steroids to five patients other than the

plaintiff and led them to believe that the steroids were antihistaminesiv. Routine Practice of an Organization

1. Evidence of the customary practice of a business is admissible to prove that the business acted inaccordance with that practice on a particular occasion, and is often considered even more probativethan individual habit evidence

2. Examples:a. Held Routine Practice

i. Any type of business custom or regular practice youre going to get that in as habit


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ii. Military bases practice of using base facilities to make authorized retirement giftsiii. That an insurance companies agents routinely waived written policy conditions

b. Held Not Routine Practice:i. Evidence of Ds late and inadequate performance of other contractsii. Ds conduct in deliberately obstructing discovery in three other lawsuits where no comparison

was made with the number of lawsuits in which D did not deliberately obstruct discoveryv. Trade Custom and Industry Standard

1. Evidence of general business customs or industry standards is admissible as bearing on the standardof care to which a particular business enterprise is held and on whether a product is unreasonably

dangerous in a strict liability case. While relevant however, the general custom or industry standardis not determinative on the issue of negligence or unreasonable dangerousness


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Subsequent Remedial Measures

a. Subsequent Remedial Measures (FRE 407)i. Rule

1. When after an injury or harm allegedly caused by an event, measures are taken that, if takenpreviously, would have made the injury or harm less likely to occur, evidence of the subsequentmeasures is not admissible to prove negligence, culpable conduct, a defect in a produce, a defect in aproducts design, or a need for a warning or instruction.

ii. Exceptions: can get evidence of remedial measure in for other purposes1. Evidence of remedial measures NOT excluded to prove:a. Notice

b. Ownershipc. Control, ord. Feasibility of precautionary measures (see below), if controverted, ore. Impeachment (see below)f. See also, below, Admissibility for other purposes

iii. Notes1. Remedial measure defined

a. One that would have reduced the likelihood that an injury or harm caused by an event would haveoccurred had the measure been made prior to the event that caused the injury or harmi. A repair; design change; firing of or disciplinary action against an employee; change in rules or

policies; new or modified warningii. Post accident analyses or studies are generally NOT considered subsequent remedial measure

2. Timing remedial measure has to be taken after the accident, not after product purchase, in order tobe kept out

3. Third Party Remedial Measuresa. FRE 407 does not bar the admission of remedial measures taken by third parties, but 403 might

still keep out4. Compelled Remedial measures

a. Some courts have held that evidence of a partys own subsequent remedial measure should beadmissible when the party was compelled by the government to take the precautionary act

5. Admissibility for Other Purposes can get ina. To prove ownership or controlb. To rebut a defensive theory based upon the condition of the accident scenec. Where the D has destroyed the relevant object, allegedly as a remedial measure

6. Feasibilitya. Remedial measure can be introduced to show that measure was physically, technologically or

economically feasibleb. Feasibility however must be controverted before such evidence is admitted

7. Impeachmenta. Permitted only where:

i. W makes factual assertions that are contradicted by subsequent remedial measure, orii. claims that the product or condition was the best or safest that it could be if W just says

that the design was good or proper, thats not enough, has to say that it was the best andthen show evidence that they changed it to impeach

Got to have some testimony to impeach


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Compromise and Offers to Compromise

a. Compromise and Offers to Compromise (FRE 408) NOT SEVERABLEi. Not admissible:

1. evidence ofa. furnishing or offering or promising to furnish, ORb. accepting or offering or promising to accept, a valuable consideration in compromising or

attempting to compromise a claim which was disputed as to either validity or amountii. 408 excludes evidence only when offered to prove validity of claim, invalidity of claim, or amount of

damages thus, can be offered for other purposesiii. Not SeverableEvidence of conduct or statements made in compromise negotiations is likewise not

admissibleiv. Exceptions:

1. Otherwise Discoverablea. This Rule does not require the exclusion of any evidence otherwise discoverable merely b/c it is

presented in the course of compromise negotiationsi. Thus, party cannot immunize discoverable material by disclosing it in course of making

settlement offer2. Evidence of compromise offer not Excluded when offered to show Other Purposes:

a. Biasb. Prejudice of a witnessc. Negativing a contention of undue delayd. prove motive or intent of a partye. in a suit to enforce the terms of the settlement agreementf. to prove knowledgeg. where the statement made in the settlement negotiation constitutes the wrongful conduct that is

the basis of the claimh. Providing an effort to obstruct a criminal investigation or prosecution

v. Notes1. Requirement of a dispute FRE 408 protects only offers to compromise and compromises of claims

that are disputed as to either validity or amount. Rule does not protect an offer to pay a claim that isadmittedly owed.a. Ie, A borrowed $ from B. A contacts B and says, I know I owe you some $ but how about if I pay

only half of what I owe?.2. Ordinary business negotiations are generally not protected3. What is protected

a. Offers to settleb. Settlementsc. Conduct or statements made in the course of settlement negotiations hence the reason why 408

stuff is NOT SEVERABLE4. Applicability in criminal cases

a. Most courts that have considered the question hold that FRE 408 does not preclude the admissionin a criminal case of evidence that an accused settled or attempted to settle a related civil claim.

5. Settlement offers for impeachment as prior inconsistent statementa. Cts go both ways as to whether you can use offer of settlement for impeachment of W re: prior

inconsistent statement

FOR COMPARISON of 408, 409 & 410 TURN FORWARDONEPAGE


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Payment of Medical and Similar Expenses

a. Payment of Medical and Similar Expenses (FRE 409)SEVERABLEi. Rule Not Admissible

1. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expensesoccasioned by an injury is not admissible to prove liability for the injury

ii. Severable1. Other statement in the same utterances and accompanying conduct can be severed and admitted

iii. What is covered1. covers both the fact of payment and offers to pay medical and hospital expenses occasioned by aninjury

iv. NOTE no explicit authority for admissibility of offer to pay medical for other purpose (but most likely OKII. Comparison of FRE 408-41Points of Comparison Civil Settlements Offers to Pay Medical

ExpensesNolo Contendere andW/Drawn GuiltyPleas

FRE 408 409 410

Must there be a

dispute?

Yes No Yes (by implication)

With whom mustpotentially liableparty deal to getbenefit of limitedadmissibility?

Anyone who canaccept settlement

Anyone who wouldaccept payment ofmedical

prosecutor (ie, notpolice officer)

Can offeredsettlement, medicalpayment, or plea dealbe admitted to showliability?

No No No

Can offeredsettlement, medicalpayment, or plea dealbe admitted to showsomething other thanliability?

Yes (bias, intent,knowledge, suit toenforce terms ofagreement)

Not explicitly, butprobably

No

Can related statementor conduct beadmitted to showliability?

No non-severable Yes Severable No non-severable

Can related statementor conduct beadmitted to showsomething other thanliability?

Yes Yes Yes to completepartial disclosuresmade by D; incriminal case forfalse statement orperjury.


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Pleas, Plea Discussions Exceptions

i. Exceptions1. Statements are admissible:

a. In any proceeding wherein another statement made in the course of the same plea or pleadiscussions has been introduced and the statement ought in fairness to be consideredcontemporaneously with it, or

b. In a criminal proceeding for perjury or false statement if the statement was made by the D underoath, on the record and in the presence of counsel


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Liability Insurance

a. Liability Insurance (Rule 411) NOT SEVERABLEi. Not admissible:

1. evidence that a person was or was not insured against liability is not admissible upon the issuewhether the person acted negligently or otherwise wrongfully.

ii. Exceptions1. Rule does not require the exclusion of evidence of insurance against liability when offered for Other

Purposes:

a. Agencyb. Ownershipc. Control; ord. Bias or prejudice of a witness

iii. N.B. get it in by admitting it for who controls or owns the propertyiv. Notes

1. Admissibility for other purposes:a. To prove the bias of a witnessb. To establish a trade custom of limited liabilityc. To establish why a safety inspection was maded. To prove the existence of an effective contract exculpating the Ds from all risk of loss or damagee. To contradict a factual assertion made by the policy ownerf. May be used to prove the liability of a third party

2. Still have to do 403 analysis even if it could come in for other purpose


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Opinion Testimony

I. Opinion Testimony by Lay Witnesses (FRE 701)a. If the W is not testifying as an expert the Ws testimony in the form of opinions or inferences is limited to

those opinions or inferences which are:i. Rationally basedon the perception of the witness

1. ie, personal knowledgeii. Helpfulto a clear understanding of the Ws testimony or the determination of a fact in issue, andiii. Not based on scientific, technical or other specialized knowledge within the scope of Rule 702 (expert

testimony)1. this prong keeps expert testimony that doesnt comport w/ 702 from being brought in here

b. Three things evidence must be:i. rationally based on Ws perception

1. requires personal knowledgea. opinion cannot be based on hearsay (theres no personal knowledge)

2. requires that opinion be one that a reasonable person would draw based on underlying factsii. helpful

1. Among the factors that affect whether a lay Ws opinion meet this test are:a. The extent to which the testimony goes to the heart of the case.

i. The more central to the ultimate issue, the more the W should be required to provide concretedetails.

b. The amount of factual matter subsumed in the opinionc. The ability or inability of the W to convey the information in the form of specific factsd. The extent to which the jury is equally well-positioned to draw the inferences from the underlying

datae. The need for the testimony

iii. not expert only get in thru 702c. Notes

i. Cases where lay witnesses have been able to offer an opinion:1. O that a truck driver was in total control when his truck was struck2. O that a developer never intended to carry out promises made to purchasers3. O regarding the amount of lost profits suffered by the Ws business4. O that the person shown in a bank surveillance photo was the D5. O concerning another persons knowledge6. O that a person is sane or insane. Note that lay witness testimony is not subject to Rule 704(b)s

ban on ultimate issue opinions relating to a criminal Ds mental state or condition

7. O that the vestibule in which P slipped was safeii. Still must do the typical 401-403 analysis

II. Opinion on Ultimate Issue (FRE 704)a. General Rule Admissible

i. Testimony in the form of an opinion or inference otherwise admissible is not objectionable b/c itembraces an ultimate issue to be decided by the trier of fact1. applies to expert on any issue except below and to lay on any issue

b. Exceptioni. No expert witness testifying with respect to the mental state or condition of a D in a criminal case may

state an opinion or inference as to whether the D did or did not have the mental state or conditionconstituting an element of the crime or of a defense thereto. Such ultimate issues are for the trier offact alone.

c. Factors Affecting Admissibilityi. Extent to which W discussed facts underlying conclusion and did not simply make conclusory assertionsii. Extent to which opposing party attempted to introduce testimony of similar tenoriii. Thoroughness of crossiv. Extent to which legal term used by W corresponds to its lay meaningv. Extent to which W used a legal term as a factual rather than a legal conclusionvi. Extent to which Ws testimony tracked the relevant legal standard and gave the appearance of instructing

the jury on the law


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Qualification of an Expert


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Testimony by Experts

III. Testimony by Experts (FRE 702)a. If scientific, technical (engineers; designers), or other specialized knowledge (someone with a lot of

knowledge on the subject) will assist the trier of fact to understand the evidence or to determine a fact inissue, a witness qualified (doesnt have to be certified) as an expert by knowledge, skill, experience, trainingor education may testify thereto in the form of an opinion or otherwise (sometimes an expert is just thereto help jury understand), ifi. 3 Components of Reliability - See Below Daubert Factors

1. The testimony is based onsufficient facts or dataa. Hearsay- experts can technicallyrelyon hearsay,but it has to be the type of information that isgenerallyreliedupon byexperts in the field. Courts willnot allowyou to back-door hearsayif its not

generallyacceptedbyexperts in the field

2. The testimony is the product of reliable principles and methods; anda. This is the source of most evidentiary disputes must show that other experts use same technique

3. The W has applied the principles and methods reliability to the facts of the case.b. Notes

i. Foundation for expert testimony1. W qualifies as an expert2. subject matter of testimony is appropriate for expert3. fact finder will be assisted by expert4. experts testimony is sufficiently reliable (see use 3-prong test in rule as fleshed out by Daubert

factors)ii. Qualification as expert no special training, education needed

1. can be experience (My Cousin Vinny)2. OK if expert is a generalist

iii. Examples of subject-matter for expert testimony:1. T re: use of non-recourse loans to execute real estate deals2. T re: whether release of fumes was caused by a fire or chemical reaction3. T re: drug dealing and drug use4. T re: cultural attitudes among Hmong refugees5. T re explaining the meaning of slang expressions6. T re: conclusions of handwriting analysis

a. N.B. lay witnesses can testify about handwriting (remember, your 1stgrade teacher is competent ttestify about your handwriting)

7. T re: reliability of eyewitness identifications (excluded, limited in one case)iv. Helpful to jury must be an area that jury not likely to understand on its ownv. Reliability Test use below factors to help determine if 3-prong standard set out in Rule is met

1. Daubert Factors 4 Flexible Standards for Determining Reliabilitya. Has theory or technique been tested (or can it be?)?b. Subject to peer review or publicationc. Known or potential error rated. Any general acceptance in relevant scientific community?

2. Additional Factors added by the courts:a. Whether the expert testimony is based on research the expert conducted independent of the

litigationb. Whether the expert has adequately accounted for obvious alternative explanationsc. Whether the expert has employed the same care in reaching the litigation related opinions as the

expert employs in performing his or her regular professional workd. Whether there is too great an analytical gap between the data and the opinione. The experience of the expert

vi. Grounds for finding lack of reliability or helpfulness1. Lack of relevance (still have to do 401-403 even if otherwise meets test)2. Expert testimony not needed (not helpful)

a. T re: domestic lawb. T re: weight a plaintiff had to lift to perform his job


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c. T re: hazards of off-leading a vessel in heavy seasd. T re: that another witness is lying or telling truthe. Opinion that the vestibule in which P slipped was safe

3. Based on speculate of incomplete data (not reliable)4. Based on Questionable theories (not reliable)5. Conclusory (not helpful)6. Too great a gap between data and opinion (not reliable)

vii.Accepted and Rejected Evidence1. Accepted

a. DNA evidenceb. Airplane identification with forward looking infrared devicec. Shoeprint evidence

2. Limited Acceptance polygraph3. Rejected

a. T re: radiation-induced cataracts can be identified through mere observationb. Theory linking ingestion of ibuprofen to renal failurec. T re: accuracy of eyewitness identifications somewhat split

viii.Non-scientific evidence1. By its terms, 702 applies to all expert testimony, not just scientific evidence

ix. Ultimate Issue (see 704)1. except for opinions as to accuseds mental state or condition, experts opinion on a mixed question of

law and fact is not inadmissible merely b/c it goes to an ultimate issue702 Checklist

1. Is the W qualified to be an expert?a. Examples although not qualified, 20 years repairing engines made the guy

an expertb. License or certification is not a per se requirementc. Sub-specialty not needed general expertise is enough (but you still may want

an expert w/ a sub-specialty)2. Is W only testifying re: areas of specialized knowledge?

a. The whole reason we let experts testify is to explain people to lay persons3. Is the experts opinion sufficiently reliable (see 702s three factors as fleshed out by

Daubert)?4. Will testimony assist trier of factin determining a fact at issue OR understanding the

evidence?

5. Is the W expressing an opinion on Ds guilt or innocence v. element of crime & justexplaining the testimony?

a. If you get something like this on the exam, just make both arguments, b/c itsnot 100% clear.

6. Will it mislead the jury (FRE 403)?

IV. Bases of Opinion Testimony by Experts (FRE 703)a. The facts or data in the particular case upon which an expert bases an opinion or inference may be those

perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon byexperts in the particular field in forming opinions or inferences upon the subject, the facts or data need not badmissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwisinadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the courtdetermines that their probative value in assisting the jury to evaluate the experts opinion substantiallyoutweighs their prejudicial effect.

b. Notesi. Three permissible bases upon which an experts opinion may be grounded

1. facts within his personal knowledge2. facts presented to him at trial, or


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Hearsay Overview

1. Definitions (FRE 801)a. The following definitions apply under this article

i. Statement. A statement is1. an oral or written assertion or2. nonverbal conduct of a person, if it is intended by the person as an assertion

ii. Declarant. A declarant is a person who makes a statementiii. Hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.2. Hearsay Checklist:

a. Assertion: Must be a statement (assertion); ANDi. Yes

1. headshake is an assertion2. pilots thumbs up is an assertion

ii. No1. videotape is not an assertion2. Yelling look out/ scream or shoot not an assertion

b. Out of Courti. Statement must be made out-of-court (not in court testimony); AND

c. Statement Offered for its Truthi. Statement must be offered to prove the truth or falsity of the matter that the statement asserts;

1. If I say John killed Marya. Are you offering it for the truth that he killed Mary? Yes

2. If I say John is going bananasa. Are you offering it for the truth that John is turning into a banana No

3. Infertile Cow Hypoa. Guy sells you a cow and says the cow is fertile. You sue him after you find out that the cow

is not fertile for breach of contract.b. The cow is fertile is not hearsay.c. Youre not trying to prove that the cow is fertile; youre trying to prove that the cow is not

fertile.

3. Non Hearsay Checklist:a. Not Intended to be an Assertion

i. If not intended as an assertion, not hearsay, i.e. sometimes silence; suicideii. Example

1. Hearsay - Testimony that a person pointed to a particular vehicle when asked to locate the source ofdrugs was assertive conduct and hearsay

2. Nonhearsay evidence the expert ate his lunch in an area alleged to be unsafe3. Silence might equal admission (see below) where an ordinary reasonable person would have said

somethingb. Matter Implied by Utterance

i. Hearsay rule is not violated if out-of-court statement is offered to prove a matter implied by, but notasserted in, the utterance.1. not hearsay b/c its not being offered for the truth of the assertion in the statement2. Example

a. In drug prosecution, it was not hearsay for officer to testify that unidentified caller to Ds beeperasked, did you get the stuff and where is Dog [co-defendants name]

b. In book making prosecution, not hearsay for officer to testify that while searching premises, heanswered the phone several times and unknown callers stated orders for placing bets.

c. Separate Relevancei. If the making of the statement itself is relevant apart from the truth of the matter it asserts or implies

1. Example: Informers side of taped conversation with accused, necessary to place accuseds admissionsin context and make them intelligible

d. Shows Effect on Listeners state of mindi. When statement is used to show the effect that it had on the listener/hearer regardless of truth or falsity


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1. MIMIC (motive, self-defense, probable cause, notice, warning, knowledge of certain event or conditionknowledge of complex details)

2. examples:a. not hearsay where D, on trial for murder of his wife, testifies that a woman told him shortly before

the murder, that his wife had sex w/ two other men.b. Not hearsay where nurse W testified that she told D, a doctor on trial for med mal, that fewer than

all sponges came out of patiente. Verbal Act W/ Independent Legal Significance

i. Statement that has independent legal significance1. Examples:

a. Contract: offer, acceptance, terms of contractb. Certificate of insurance issued by the FDIC, as evidence of the fact of the legal relationship of

insurer and insuredc. Words that operate as a conveyanced. Tape recorded conversations of illegal gamblinge. Ballots, to show the votes castf. Threats, in a prosecution for threatening court officersg. guaranty, words of defamation libel or slander; words of conspiracy

ii. Verbal Parts of Acts1. utterance establishes the legal character of the act it accompanies2. Non hearsay

a. Words that accompany the delivery of money or property may establish a gift, a loan, a bribe, a beor payment of a debt

b. Declarations by an occupant of land, offered to show that the possession was adversef. Info from Mechanical Devices

i. Information or statements obtained thru mechanical devices are not hearsay1. Radars and X-rays are not hearsay2. Tape recordings and videos tapes themselves are not hearsay, but statements are

a. Multiple hearsay levelsi. First you say you can get it in: Mechanical Deviceii. Then look at the statements and see if you can get them in


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Hearsay Prior Statements by Witness

a. 1) Prior Statement by Wi. (A) Inconsistent Statements:

1. Elementsa. The declarant testifies at the current trial or hearing andb. issubject to cross-examination concerning the previous out-of-court statement, and the

statement is:i. satisfied if W is available to be recalled for re-cross

c. inconsistent with the declarants current testimony, andd. was given under oath subject to the penalty of perjuryi. If No, can still use for Impeachment (See FRE 613)

e. At a previous trial, hearing, or otherproceeding, or in a depositioni. Other proceeding: includes grand juryii. other proceeding does NOT include station house interrogations by law enforcement

officers, even if the statement is written and swornii. (B)Consistent Statements:

1. Elementsa. The declarant testifies at the current trial or hearing andb. issubject to cross-examination concerning the previous statement, and the statement is:c. consistent with the declarants current testimony andd. Rebut: Is offered to rebutan express or implied charge against the declarant of recent fabrication

or improper influence or motivei. In order to use this way, the declarants credibility has to be attacked first

iii. (C)Identification:1. The declarant testifies at the trial or hearing and2. issubject to cross-examination concerning the statement, and the statement is:3. one of identification of a person made after perceiving the person; or

a. talking about lineupsi. the person needs to be available in trial to be cross examined; right to confront Ws

b. Notesi. Rule does not limit proof of the prior identification to testimony by the identifying W; another

W who was present, such as a police officer, may testify to the previous identification

ii. Prior identification need not be consistent with Ws testimonyiii. The requirement that the W be subject to cross-examination concerning the statement is not

violated by the W having, or purporting to have, no present recollection of the identity of theperson.

ID should be temporally close to perception to avoid possible fabrication charge


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Hearsay Admission by Party-Opponent

a. (2) AdmissionsMUST BEMADEBYDECLARANT WHOISPARTYOPPONENTi. The statement is offered against a party and is

1. Generala. (A) the partys own statement in either an individual or a representative capacity or

2. Adoptive Admissions:a. (B) a statement of which the party has manifested an adoption or belief in its truth, or

i. Examples agencies, co-conspirator admissions and adoptive admissionsii. Can adopt affirmatively; by silence; or by positioniii. NOTE post-arrest silence cannot be used as an adoptive admission by silence b/c of Miranda

3. Agency Admissionsa. Two Ways

i. Within the scope of the duties (D); or1. depends on job title2. Party does not have to have authority to speak for the principal, so long as its within the

scope of employmentii. Authorized (C)

1. Not authorized employee says we should have clean it up hours agob. Notes

i. Attorney:1. an attorneys statement in the course of representing a client may be admissible against

the client as an admission4. Conspiracy

a. (E) a statement by a coconspirator of a party during the course and in furtherance of theconspiracyi. Conspiracy will have to exist at time of statementii. If before you entered conspiracy look for ratification

1. If you withdraw from conspiracy look for affirmatively removing yourselfiii. Must further the conspiracy

5. The contents of the statement shall be considered but are not alone sufficient to establish thedeclarants authority under subdivision (C), the agency or employment relationship and scope thereounder subdivision (D), or the existence of the conspiracy and the participation therein of the declaran

and the party against whom the statement is offered under subdivision (E)ii. Person does not have to be available and there is no personal knowledge requirementiii. Statement being offered against the party opponent need nothave been against opponents interestat

time he made it (compare w/ DAI)


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Hearsay Exceptions Availability of Declarent Immaterial

4. Hearsay Exceptions; Availability of DeclarantImmaterial(Rule 803)a. The following are not excluded by the hearsay rule, even though the declarant is available as a W:

1. PresentSense Impression (FRE 803(1))a. A statement describing or explaining an event or condition made while the declarant was

perceiving the event or condition, or immediately thereafteri. Requirements

1. Need Personal Knowledge2. Short Time Framea. If not simultaneous, then slight lapse of time

i. 15 to 45 minutes later, too longii. EU is much longer

3. Must be describing or explaininga. exception covers only statements describing or explaining an event or condition

4. Corroboration by another W unnecessarya. Only time you need it is for jail cell confessions

ii. Exam: argue for PS & EU, but say thatEU is better.2. Excited Utterance. (FRE 803(2))

a. A statement relating to a startling event or condition made while the declarant was under thestress of excitement caused by the event or condition.

i. Requirements1. Spontaneous Utterance

a. utterance must raise presumption that it is a spontaneous utterance arising out ofsome eventi. cant have time to reflectii. Easier to get in than PSIiii. Courts have allowed it up to 2-3 weeks later

2. Personal Knowledgea. declarants statement must be made with the personal knowledge of the event/

condition3. Relating to a Startling Event

a. Broader than PSI slip and fall, bystanders statement, I told them to clean it up aboutwo hours ago an hour and a half ago. admissible

4. Lapse of time factors to consider to see if still gooda. Amount of time that has passedb. Age of declarantc. Physical and mental state of declarantd. Characteristics of evente. Subject matter of statements

5. Do NOT need to know identity of person who actually made the statement6. Coma Hypo

a. Argue both Excited Utterance (where it works); andb. Identification doesnt work whether it was made after perceiving the person

ii. N.B. look for exclamation points3. State ofMind - Then ExistingMental, Emotional, or Physical Condition (FRE 803(3))

a. A statement of the declarants then existing state of mind, emotion, sensation, or physical conditio(such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including astatement of memory or belief to prove the fact remembered or believed unless it relates to theexecution, revocation, identification, or terms of declarants willi. Four Categories Covered:

1. Presentbodilyconditiona. Admissible - I have a headache; My back hurts State of Mindb. Car accident

i. Complains of back injury. Someone wants to bring in W that they played tennis -No hearsay problem


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ii. 3 weeks before accident their back hurt - state of mind, you get it in, i.e. the personis testifying that at that time, that was their state of mind

2. Present state of mind or emotion, offered to prove a state of mind or emotion of thedeclarant that is in issue in the casea. Example: In extortion case, victims fearful state of mind is an essential element,

therefore victims expressions of fear are admissible3. Statements re: intent, plan, or design

a. Usually arises where intent is an element of substantive law4. State of mind statements of a testator, offered on certain issues in willcases

ii. Not State of Mind1. I revoked my will last night Not a state of mind2. State of Mind Not Declarants

a. Can only introduce it for declarants state of mind, not what declarant said aboutsomeone elses state of mind

3. Statement of Future Intenta. You can use declarants statement of intent to show that subject of intent actually

occurredb. Intent to act w/ a 3rd party can be used to show that declarant and the 3rd party did, in

fact carry out the act so long as there is corroborating evidence as such.4. Does not include statement of memory or belief (this stuff speaks to past, not present)

iii. No elaboration permitted1. statement only admissible to extent that it speaks to state of mind2. statement not admissible to the extent that it elaborates on the cause of the state of mind

a. eg, I am afraid OKb. because Jon is trying to kill me. not OK

Motive, Bias,

Reasonableness, Notice

State ofMind of declarant

Hearsay No. Yes.

Exception N/A Yes.

4. Statements for Purposes ofMedical Diagnosis or Treatment (FRE 803(4))a. Statements made for purposes of medical diagnosis or treatment and describing medical history o

past or present symptoms, pain, or sensations, or the inception or general character of the cause oexternal source thereof insofar as reasonably pertinent to diagnosis or treatment.i. Statements by declarant of his medical condition can be made by a 3rd party if for purpose of

receiving treatment or diagnosis.ii. Not limited to medical personnel

1. Its ok. As long as its for treatment. i.e. tell man on road how youve been hurt.iii. Key:

1.

if its to help them get fixed then its oka. Ex1: nurse writing down how you got injured is ok.b. Mother or father who takes kids to Dr. and say that symptoms to the Dr. will be okc. Ex2: water on floor; boxes in way; slipped and hurt yourself can only get in what it

takes for treatmentd. Caution: has to be for treatment, watch out for statement made to Dr. who is not the

treating physician2. Car Hypo

a. I was hit by a car admissibleb. Car drove through a red light inadmissiblec. Car was driving at 60 mph admissible so long as the speed assists in diagnosing or

treating


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6. Business Records: Records of Regularly Conducted Activity (FRE 803(6))a. N.B. Watch out for double hearsay got to get the document in by using business record

exception, then get each statement in within some other hearsay exception

b. NOTE: public records could come under either public record exception or business recordexception so both should be discussed

c. Elements:i. Must be a Business Record Memos, Reports, Records, Data Compilations

1. Medical records, police reports, etc.2. Business = business, institutions, associations, professions, occupations, very broad term(even non-profits)

ii. About Acts, events or conditionsiii. Made at or near the time of the perceptioniv. Made, or transmitted from a person with personal knowledge, and

1. Person making the entry does NOT have to testify but elements of business recordsexception must be introduced by a reliable qualified W with personal knowledge of therecords, such as the custodiana. Foundation can now be established by custodian

v. Kept in the ordinary course of regularly conductbusiness activity.1. ie, not in anticipation of litigation2. ie, logs, register, business receipts3. note some businesses employ accident reporters for purpose of improving safety this is

in course of businessvi. Regular practice of business activity to make the record; i.e., it is a routine record

1. Not Admissible - i.e. a hospital record that contains a very detailed manner in which apatient is injured is not considered to be a regular business record.

d. Notesi. Cannot be made for purpose of litigationii. Excludes

1. 3rd party statements contained in business records are not admissiblea. look for other statements made by people other than the declarant that got into the

record

i. i.e. doctors report that he put in statement made by someone else saying D didntstop at red light. Cant get that in under the business records

iii. Business records prepared from other admissible business records are admissibleiv. Accident reports not related to systematic conduct of business is inadmissible except when

prepared by a party not involved in the accident and kept in the regular course of businessv. Computer Data

1. party must show that the input procedures conform to the standard practice of personengaged in the business or profession of the party

2. But still have to get it in and look for statements7. Absence ofEntry in Records Kept in Accordance with theProvisions ofParagraph (6)(FRE

803(7))a. Normallykeep a record,but dont have this record. Can use it to prove non-existence of an event.b. Evidence that a matter is not included in the memoranda reports, records, or data compilations, in

any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence ornonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, ordata compilation was regularly made and preserved, unless the sources of information or othercircumstances indicate lack of trustworthiness

c. Notesi. Proponent of absence of BR must show that if the act/event had occurred it would have

appeared in the record.1. ex: a business has a check ledger which shows regular and prompt payment of all bills

received; absence of entry shows no payment of bill (or may show no bill was everreceived)


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8. Public Records and Reports (803(8)-(10))a. Requirements:

i. Is the record official, i.e. made by a public agency?1. one of the three listed below

a. NOT necessary to show that the public record or report was regular or made at or neathe time of the event recorded no temporal requirement

ii. Is it self-authenticated (FRE 902 allows public records to be certified by a public official)1. Newspapers are self authenticated HAVE TOMENTION2. Public Record = self authenticated3. Business record is notself authenticated

b. FRE 803(8))i. Records, reports, statements, or data compilations, in any form, of public offices or agencies,

setting forth1. (A) the activities of the office or agency, or2. (B) matters observed pursuant to duty imposed by law as to which matters there was a

duty to report, excluding, however, in criminal cases matters observed by police officeranother law enforcement personnel, ora. applies to observations in connection with criminal investigation, does not apply to

routine, ministerial, objective observations (i.e. warrant of deportation, calibration ofbreathalyzer)

3. (C) in civil actions and proceedings and against the Government in criminal cases,factualfindings resulting from an investigation made pursuant to authority granted by law, unlessthe sources of information or other circumstances indicate lack of trustworthinessa. factual findings includes opinions or conclusions of a factual nature, such as the caus

of an accident. NOT legal conclusionsb. can be used by any party in civil, but only by D in criminal

ii. Police Reports1. Civil can get in2. Criminal are not going to be able to get in b/c of constitutional right to confront

witnessesc. Records of Vital Statistics (FRE 803(9))

i. Records or data compilations in any form of births, deaths, marriages, etc if:1. Report was made to a public office and2. Pursuant to requirements of law

d. Absence ofPublic Record or Entry (FRE 803(10))i. If normallysomeone would have recorded something and its not thereii. To prove the absence of a record, report, statement, or data compilation (or nonoccurrence of

a matter) you may introduce a certification (See FRE 902) or testimony that diligent searchfailed to disclose the public record or entry and that such entry is regularly made andpreserved by a public office or agency

e. Exceptionsi. Does not include criminal cases where police officers and other law enforcement personnel

observe the matters at issueii. Criminal cases

1.

Police Reporta. Does not include police reports2. Untrustworthy

a. Does not include any record or report that is untrustworthyi. Timeliness of the investigationii. The investigators skill or experienceiii. Whether a hearing was heldiv. Possible bias when reports are prepared with a view to possible litigation

iii. Double Hearsay Problems1. Most courts treat these situations as with private business records; they will not admit for

its truth a statement by an outsider declaranthaving no official duty to report, unless itfits within a hearsay exception


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Public Record Admissibility

------------------Get in by who?-----------------------------

Type of report Civil P Civil D Crim P Crim D

Activities of publicoffice

Y Y Y Y

Matters observedpursuant to legalduty (BUT NOT LAWENFORCEMENT)

Y Y Y Y

Matters observedpursuant to legalduty (LAWENFORCEMENT)

Y Y N N

Findings fromofficialinvestigations

Y Y N Y

9. Records of ReligiousOrganizations (FRE 803(11))a. Birth, marriage, divorce, death, legitimacy, ancestry, relationship by blood or marriage, facts of

personal or family history are admissible if:i. Statement is regularly kept recordii. Of a religious organization

10.Marriage, Baptismal and Similar Certificates (FRE 803(12))a. Statements of fact in such documents are admissible if

i. Certified by a maker who performed the religious act;ii. The maker was authorized to perform such act by the organization or by lawiii. The certificate was issued at or within reasonable time of date act occurred

11.Family Records (FRE 803(13))a. Family records statements of fact are admissible if set forth in/on:

i. Family bibles, genealogies, charts, engravings on rings, inscriptions on family portraits,engravings on urns, crypts, tombstones, etc.

12.Records of Documents Affecting an Interest in Property (FRE 803(14))a. Records must be of a public officeb. Law authorizes the recording of documents in this kind of officec. Usually b/c cannot find the original recorded document which was executed and delivered by

parties


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13.Statements in Documents Affecting an Interest in Property (FRE 803(15))a. If matter stated in document that establishes or affects an interest in property is relevant to the

purpose of the document, it will not be hearsayb. Exception:

i. If conduct/course of dealings is inconsistent with the truth of the statement or the purpose ofthe document

14.Statements in Ancient Documents (FRE 803(16))a. Notes: FRE says document must have existed for 20 years. Common law said 30 years.

15.Market Reports, CommercialPublications (FRE 803(17))a. Key inquiry: is the report or publication used and relied on generally by the public or by persons i

particular occupations, i.e. annual reports, SEC filings, public offerings.16.Learned Treatises (FRE 803(18)) Only with expert testimony

a. Published treaties, periodicals, pamphlets, on history, medicine, art, etc.b. Can only be used after an expert witness relies on the document during direct examination or it

has been called to his attention on cross-examination. The court must take judicial notice (or theW testify) that document is authoritative.

c. Note: only come up in the expert contexti. Books are technically hearsay if you dont get them within these rulesii. Same with newspaper articles

d. Note: the document is not itself admitted into evidence. Onlythose parts read into evidence that areused for impeachment or substantive evidence.

17.Reputation ConcerningPersonal or Family History (FRE 803(19))a. Reputation among members of a family (even if adopted, married, etc.) or among associates or in

community regarding a persons birth, adoption, marriage, divorce, death, legitimacy, relationshipto other family members, or other facts re: personal or family history

18.Reputation concerningBoundaries or General History (FRE 803(20))a. Boundaries or customs re: land in the community and reputation as to events of general history in

the community, state or nation19.Reputation as to Character (FRE 803(21))

a. Reputation of a persons character among his associates or in the community20.Judgment ofPrevious Conviction (FRE 803(22))

a. Final judgments of previous convictions, i.e. entered after trial or plea of guilty (not nolocontendere) if punishable by death or imprisonment in excess of 1 year are not hearsay to proveany fact essential to sustain the judgment

b. Note: Can use criminal judgment in subsequent civil proceedings, but cannot use civil judgments icriminal proceedings.

c. Exception:i. Such previous convictions cannot be offered by Govt in a criminal prosecution against

someone other than the accused.d. Evidence of judgments are admissible under 803(22); Guilty pleas are admissible as admissions

under 801(d)(2)e. But pleas of nolo, withdrawn guilty pleas nad offers to plead guilty are inadmissible under FRE 41

21.Judgment as to Personal, Family, or GeneralHistory or Boundaries (FRE 803(23))a. Judgments re: proof of matters of personal, family or general history, or boundaries, essential to

the judgment are not hearsay if the same could have been proven by evidence of reputation22.Transferred to Rule 807a. Catch All Exception (equivalent circumstantial guarantees of trustworthiness)b. Key

i. Does the statement have circumstantial guarantee of trustworthiness?c. Material

i. Is the statement offered as evidence of a material fact?d. Trustworthy and More Probative than other evidence

i. Is the statement more probative on the point than other evidence reasonably procurable bythe proponent; and

e. Interests of justicei. And the rules are served by introducing the statement


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Hearsay Exceptions Declarent Must Be Unavailable5. Declarant Must Be Unavailable FRE 804

a. Unavailable Defined:i. Privilege

1. Exempted from testifying because of privilege2. NOTE if privilege is asserted, you must first get a court order exempting W from testifying before

claiming the privilegeii. Persists in refusing to testify despite court order

a. 5th Amendment if you take the 5th, youre unavailableiii. Lack of Memory

1. Testifies to lack of memory re: statement (Winona Ryder amnesia)iv. Death, etc.

1. Dies or has then existing physical or mental illness or infirmitya. Illness doesnt have to be permanent

v. Absent After Reasonable Effort to Obtain1. Absent from hearing and cannot obtain attendance by reasonable means

a. good faith effortsb. for absence alone, have to show that you cant get the testimony by other means such as depositio

vi. Notunavailable if:1. The unavailability is due in any part to the person now trying to introduce the statement2. you must show that declarant is TRULY unavailable

b. Former Testimony 804(b)(1)i. Common Law

1. parties and issues must be identicalii. FRE

1. party (or predecessor in interests in civil action) against whom evidence is now offered must have:a. been a party in the former proceeding, or in a deposition taken in compliance with law in the

course of the same or another proceeding, if the party against whom the testimony is now offeredb. prior proceeding must have been under oathc. Other side must have had an opportunity and similar motive to develop testimony

i. Note: actual cross-examination is NOT required. Only need to show that there was theopportunity to do so.

ii. Identity of parties only required if criminal case.iii. Similar Motive

1. generally, a party or predecessor in interest is regarded as having a similar motive todevelop the testimony when the issue to which the testimony related at the former hearinis substantially identical to the issue in the present hearing

iv. NOTE prosecution could never use grand jury testimony b/c defense counsel is not permitteto cross-examine

c. Dying Declaration FRE 804(b)(2)i. Common Law

1. homicide only cases and declarant must be deadii. FRE

1. Applies in all civil cases and criminal homicide cases2.

Declarant need not die but must be unavailable3. statement should speak to cause of what witness believes to be impending deatha. Statement has to be where you thought you were going to dieb. If you thought you were going to die and now on your honeymoon, youre unavailablec. Declarant must have actually and reasonably believed death was impending

4. Can get statement in even if it literally supports a belief of survival could be an optimistic statementbut circumstances show declarant thought death was near

d. Statement Against Interest (FRE 804(b)(3)i. If its a party use admissions (where you dont have to prove against interest). This is almost always

going to be when you dont have a partyii. DAI Exception includes:


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1. Statements which subject declarant to civil liability or which render invalid a claim by him againstanother party/person that a reasonable person in the declarants position would not have made thestatement unless believing it was true; and

2. Statements against penal interest (if offered to exculpate the accused, must show that corroboratingcircumstances to establish trustworthiness)a. Example jail cell hypo have to show evidence if guy dies and cell mate if offering his statement

that he actually was killerb. Factors:

i. Relationship between the declarant and the accused (the absence of a close relationship makeit less likely that the story is fabricated for the benefit of the accused);

ii. Whether the statement was made voluntarily after Miranda warningsiii. Whether there is evidence that the statement was made in order to curry favor with

authoritiesiii. Statement must be against interest at time it was madeiv. Declarant does NOT need to know statement was against interest at time it was madev. Declarant must have personal knowledge


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HEARSAYCHARTS

Admissions v. Declarations Against Interest

DAI ADM

Availability? Requires Unavailability Dont have to be unavailable

Against Interest? Yes. Statement of a non-party against interest whenmade (pecuniary,proprietary or penal)

No. Does not need to beagainst interest when made

Personal Knowledge Yes. No.

Other Statement must be of thekind a reasonable personwouldnt say unless it is true.

Party? If its a party, use Admissions

where you dont have toprove it was against interest

Police Reports

Memory RefreshMemory FRE612

Read it in803(5)

Get DocumentIn

Multiple LevelAnalysis

Yes If refreshes,they testifyfrom memory

N/A BusinessRecords(803(6))

(get documentin, then all thestatementsseparate)

Public Records(803(8)) criminal, no,civil yes (get inand then do

hearsayanalysis)

Can get inwhere cars were

W Statements:

Look forexceptions:

- PSI- EU

No N/A No memory, canread it in

But must domultiple levelanalysis forstatements inreading

Same Same


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Former Testimony

Prior Statements(Inconsistent)

801(d)(1)(A)

Former Testimony

804(b)(1)

Prior ConsistentStatement

801(d)(1)(B)

Available? Yes. Sitting in court No. unavailable Yes. Sitting in

court

Cross (whenstatementmade)

No. At trial subject tocross

Yes. b/c W is notthere

No. At trialsubject to cross

Similar Motive? No. youre being crossednow

Yes. b/c W is notthere and was crossedbefore

No.

Sworn Yes. Yes. No.

Statement madeat a proceeding

Yes. Yes. No.

Rationale Youre sitting in court,so thats when youll becross, which means thatyou have to be present

Youre unavailable soin previousproceeding, you hadto be crossed

Has to be offeredto rebut charge ofrecent fabricationor improperinfluence ofmotive

Grand Jury Yes. Testimony NotAdmissible (book

says different)

Depositions Yes. Yes. Admissible

N.B. if not admissibleunder this Rule look toFRE 613 Impeachment

Getting Prior Stuff In

Situation

DeclarantAvailable, butcant remember

1. RefreshMemory (612)

Show W the paper; then they testify from theirmemory

If Memory Notjogged (D canread the paperinto evidence,subject to


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multiple levelhearsayanalysis):

2. RecordedRecollection(FRE 803(5)

Requirements

1. written memo/record2. by W who is testifying (different than bus.

Records

3. W had to have PK (cant write doc aboutsomething theyve not heard)4. at or shortly after time of the event5. reflect accurate knowledge6. W has to be present at trial7. 7. W has to not have sufficient memory

DeclarantAvailable, but hastestified before

3. PriorStatements

Identification

1. ok if W present and subject to crossConsistent Statements

1. present2. subject to cross3. no bolstering have to be rebutting attackInconsistent Statements

1. a Statement2. inconsistent with testimony3. at a proceeding (deposition qualifies)4. sworn/under oath5. present a trial6. subject to cross

If W is notavailable, buttestified before:

DeclarantUnavailable

4. Is it formertestimony? (FRE804)

Requirements

1. declarant unavailable (amnesia, coma)2. statement made at a proceeding3. under oath4. subject to cross5. with cross under similar motive as in this trial

Admission Checklist

1. Is there someone who is a party to the case

2. Is it out of Court?

3. Who made the statement

4. Whos offering it? Admission has to be from other side


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Confrontation Clause Crawford

Impact on the Admisibility of Victim Statements

Confrontation Clause Bars the introduction of Testimonial Statements at trial against a person without calling theoriginal speaker to testify in court, or id the original speaker is unavailable the statements could only be used if theywere made at at time when the defendant had a prior opportunity to cross examine that speaker.

In Davis, the Supreme Court held that the statements made by the victim of a domestic dispute to the dispatcher were

not testimonial and were therefore, admissible even thought the victim would not testify in court. In making thisdetermination, the court reasoned that the purpose of the dispatchers questions during the 911 call were to describea situation requiring police assistance rather than to gather evidence for the prosecution of a crime.

Four Points Noted that made the statements admissible:1. The statements were being recorded as they were taking place, not after the occurance.2. Statements of facts due to an actual physical threat.3. Statements necessary to resolve an ongoing emergency.4. Frantic, ongoing environment, i.e. no calming period.

However, here, the court held that that the admission of the statements violated the defendants right under the SixthAmendment to confront witnesses against him. In this case, when the police arrived the situation was calm, the

emergency (the fight) was over, and there was no immediate threat to the victim. The Supreme Court reasoned thatin questioning the victim, the police were not trying to determine what was presently happening, but rather what hadhappened in the past. Thus, the primary purpose of the police questioning was to investigate a possible crime andgather evidence. This made the statements testimonial, and since the victim would not testify thus, making hersubject to cross examination, the statements were not admissible.


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Best Evidence

Best Evidence only applies when the WRITING IS AT ISSUE. Lottery ticket, etc. Say Best Evidence applies, therefore the original must be produced unless the

other side will stipulate

MUST SAY EITHER BEST EVIDENCE DOES OR DOESN'T APPLY!

8/8/2019 Dean Andre